In a recent Australian court ruling, the country’s citizenship-stripping laws faced significant scrutiny. The ruling highlighted the need for a fair and judicial process when deciding to revoke citizenship as a punishment for “serious crimes”. The Australian Senate is now considering new legislation that would grant government ministers the power to request judges to consider citizenship removal in specific cases. To delve deeper into the legal and human rights implications of this issue, we spoke with Ben Saul, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
The previous Australian government’s citizenship laws relied on a legal fiction that automatically revoked citizenship for individuals involved in certain acts of terrorism. However, the courts deemed this approach insufficient, stating that a proper administrative decision must be made, and the affected person must be aware of their revoked citizenship. Additionally, the courts recognized citizenship-stripping as a criminal-like penalty or punishment, which can only be imposed by a court, according to the Australian Constitution. Consequently, the court ruled that ministers cannot make this decision, as it falls under the jurisdiction of the judiciary.
Comparing Australia’s approach to that of the United Kingdom, particularly the case of Shamima Begum, reveals variations in how citizenship-stripping laws are implemented. In Australia, the process must involve a criminal court decision, ensuring robust safeguards. In contrast, other countries may grant ministers the power to strip citizenship, subject to review by a court or through a civil proceeding. Regardless of the approach, fair hearings, proper disclosure of security evidence, and judicial protection are crucial to safeguard individuals’ rights.
Israel has also faced proposals to expand citizenship-stripping powers, raising concerns about potential human rights violations. The proposed legislation in Israel goes beyond existing laws by allowing individuals to be made stateless, which is contrary to international law. International legal standards dictate that citizenship-stripping can only occur if an individual possesses a second nationality that is available and effective. Israel’s proposal, which would leave individuals without any citizenship or nationality, violates these standards. Ben Saul has urged Israel to ensure that any expansion of citizenship-stripping powers aligns with international law, emphasizing the importance of legality, due process, and judicial protection.
The issue of due process has been a significant concern in many countries where citizenship-stripping has occurred. In some cases, decisions have been made by ministers or executive government bodies, rather than through a fair hearing in a court. Such decisions lack independence and are susceptible to political considerations. The historical context of citizenship revocation has been limited to cases of fraud or cases of treason during wartime. However, the current trend of stripping citizenship in terrorism cases, particularly when the acts are committed in foreign countries, raises questions about the relevance and effectiveness of charging individuals with disloyalty or treason.
It is essential to adopt a modern approach that focuses on addressing the terrorist threat posed by individuals through criminal prosecution and the implementation of effective counterterrorism laws. Additionally, countries should take responsibility for dealing with individuals who have connections and ties to their nation, rather than relying solely on citizenship-stripping measures.
While the Australian Senate considers new legislation granting ministers the ability to recommend citizenship-stripping as a punishment in certain court cases, it is crucial to ensure that any proposed measures meet international law requirements. This includes upholding the principles of legality, due process, judicial protection, and avoiding statelessness. The complexities surrounding citizenship-stripping laws require careful consideration to balance security concerns with the protection of fundamental human rights.
